No Clear Winner in Decision In Isuzu vs. Consumer Reports

By ANDREW POLLACK

Published: April 8, 2000

LOS ANGELES, April 7—
Consumer Reports magazine might have escaped monetary damages from the closely watched defamation lawsuit filed against it by Isuzu Motors Ltd., but damage to its reputation as a fair evaluator of products for consumers might be another question.

A jury in Los Angeles ruled Thursday that Consumers Union, the publisher of the magazine, had made several false statements in an article and at a news conference in which it branded the Isuzu Trooper sport utility vehicle unsafe because of a tendency to tip over when swerving to avoid an object in the road. Despite that, Consumers Union won the case because the jury either found the false statements were not made maliciously or had not damaged Isuzu.

The verdict, analysts said, was one that allowed both sides, rightfully, to claim a share of victory, with the real victor being freedom of the press.

''It's a compromise between not wanting to punish Consumer Reports and at the same time wanting to set the record straight,'' said Robert C. Post, a professor specializing in libel law at the University of California at Berkeley. He called the verdict a ''slap on the wrist'' for the magazine, but not ''a punch in the nose.''

The lawsuit was closely watched because a verdict against Consumers Union could have had a chilling effect on the publication of negative reviews. Some newspaper editorials and free-speech advocates, as well as Consumers Union itself, had called the lawsuit an attempt to intimidate Consumers Union, a nonprofit organization based in Yonkers.

Jonathan Kotler, a professor of media law at the University of Southern California, said Isuzu ''got most of what they reasonably could have expected,'' from the lawsuit. ''They damaged the credibility of Consumers Union, which is what they wanted to do, and they cost them a lot of money, which they wanted to do.''

Isuzu denies wanting to intimidate Consumers Union. ''It was an attempt to set the record straight, which we did,'' said Andrew M. White, the lead attorney for Isuzu. ''We won what was most important to us.''

Isuzu had claimed Consumer Reports essentially rigged the tests that showed the Trooper to be more prone to rollover than other sport utility vehicles. Among the statements found to be false by the jury was one in which Consumers Union said that the Trooper had a ''unique and extremely dangerous propensity to roll over in a real-world emergency avoidance maneuver,'' and one that stated that all the vehicles were tested with ''the same steering input, but in the case of the Trooper, with dramatically different results.''

R. David Pittle, vice president and technical director for Consumers Union, denied the organization's credibility had been shaken by the verdict, saying the jury agreed with the magazine's ''core message,'' about the propensity of the Trooper to tip over. Indeed, the jury rated as ''true'' the cover of the October 1996 magazine, which carried the big headline ''UNSAFE'' over a photo of the Trooper tipping on its side, as well as a statement saying the Trooper had ''a dangerous propensity to roll over in our emergency avoidance maneuver.''

Rhoda H. Karpatkin, the president of Consumers Union, predicted the magazine would retain the trust of its 4.3 million subscribers. ''What they trust us to be is honest,'' she said. ''They don't trust us to be perfect.''

Compared with passenger cars, sport utility vehicles have a greater propensity to roll over because of their higher center of gravity. About 47 percent of fatalities among sport utility vehicle or pickup truck passengers are related to rollovers, compared to 22 percent for passengers in cars, according to the National Highway Traffic Safety Administration.

However, how to test the stability of sport utility vehicles is a contentious issue. Consumers Union used drivers who swerved sharply to the left to avoid an imaginary obstacle, then even more sharply back to the right to escape oncoming traffic.

But according to the federal agency, few actual rollovers occur in those circumstances. More than 90 percent occur when the sport utility vehicle is ''tripped,'' such as by running up the curb, hitting a guard rail or running up on a lower vehicle.

The Traffic Safety Administration is planning to provide consumers with information on the stability of sport utility vehicles, much as it provides comparative data on crashworthiness. Last year, it tested some vehicles using a method similar to that of Consumer Reports, except that the driving was done by a mechanical arm, instead of people, to improve consistency. But the agency is now leaning against using any driving test at all and instead will use mathematical formulas to predict stability, according to one person close to the matter.